United Nations Analyzes the Impact of Information and Telecommunications Technologies on State Sovereignty

Ericson Scorsim. Lawyer and Consultant in Regulatory Communications Law. Ph.D. in Law from the University of São Paulo (USP). Author of the book “Jogo geopolítico entre Estados Unidos e China no 5G: impacto no Brasil.” (The Geopolitical Game between the United States and China regarding 5G: Impact on Brazil.)

The United Nations (UN) has set up a study group on information and telecommunications technologies and global cybersecurity. 

There are several reasons given for the project: the advanced development of new information and telecommunications technologies, the increase in global connectivity, the dual-use nature of information and communications technologies (i.e., civilian and military use), the essentiality of these technologies for government services, the existence of real threats in the exploitation of these technologies that put the security of nations at risk, the expansion of the Internet of Things and the risks associated with it.

Considering this, the study group’s report proposes confidence-building measures between countries on the subject of cyber defense.[1] In particular, the group seeks to construct rules, norms, and principles of state responsibility in terms of international law and cyber defense. It also aims to promote institutional dialogue about the increasing dependence on information and communication technologies.

It is further suggested that states be encouraged to build the capacity to identify and protect national and transnational critical infrastructure and supranational critical information infrastructure. As for the promotion of responsible behavior by the states, a strategy of technological neutrality should be adopted to prevent the abuse of technologies concerning the carrying out of cyber-attacks and the exploitation of information and communication technology vulnerabilities, including the context of “machine learning,” “quantum computing,” and the “Internet of Things.” It is further recommended that states do not adopt “proxies” to commit harmful acts internationally and prevent their territory from being used by non-state actors to commit harmful acts against other countries and/or targets. Thus the suggestion of measures for “building confidence” among the states.

The issue of the right of states to use force in the cyber environment is under debate. States have the right to defend themselves in the cyber environment. However, states’ actions must be guided by international law principles, such as humanity, necessity, proportionality, differentiation, and precaution.[2] As per the UN final report: “States concluded that there are potentially devastating security, economic, social and humanitarian consequences of malicious ICT activities on critical infrastructure (CI) and critical information infrastructure (CII) supporting essential services to the public. While it is each State’s prerogative to determine which infrastructures it designates as critical, such infrastructure may include medical facilities, financial services, energy, water, transportation, and sanitation. Malicious ICT activities against CI and CII that undermine trust and confidence in political and electoral processes, public institutions, or that impact the general availability or integrity of the internet, are also a real and growing concern. Such infrastructure may be owned, managed, or operated by the private sector, may be shared or networked with another state or operated across different states. As a result, inter-state or public-private cooperation may be necessary to protect its integrity, functioning and availability”.[3]

The UN’s concern is that the misuse of information and communication technologies may cause future conflicts between states. In other words, cyberattacks between states can trigger severe conflicts between them. Therefore, the UN wants to deploy confidence-building measures among states through reliable partnerships. In this sense, it recommends installing specialized cyber response teams: computer emergency response teams (CERTs) or computer security incident response teams (CSIRTs). Thus, it is recommended that access to technologies be facilitated for states, that the state sovereignty principle be respected, and that sensitive information’s confidentiality be protected.

On this subject, it should be noted that cyber operations can violate the sovereignty of other countries. A country can address other countries’ critical national infrastructures (telecommunications, energy, financial, water, civil aviation systems, among others). Recently, the specialized media pointed out that France has expanded the number of cyber operations against targets located in other countries. That opened a debate as to whether France was adopting a contradictory practice in terms of sovereignty. On the one hand, France advocates for the purist conception of classical sovereignty in terms of physical territory.  However, on the other hand, France maintains a flexible position of sovereignty in the cyber environment, to the point of attacking cyber targets located in other countries. In this second option, there is simply a denial of another state’s sovereignty in the case of a cyber-attack. France has unleashed several cyber operations: the Emoted (2021), Encrochat (2020), and Retaup (2019).  Operation Emotet was a coordinated operation between France, the Netherlands, Germany, the United States, the United Kingdom, Lithuania, and Ukraine to disrupt emotet malware. The operation consisted of implanting malicious software in command-and-control servers. The emotet malware has also infected computer systems located in other ninety (90) countries. In 2020, the Center for Combating Digital Crime (C3N) of the French National Gendarmerie led Operation EncroChat. The target was the servers of the private company EncroChat that provide encrypted phones for secure communications. Malicious software was infiltrated into the servers of said company, demanding its performance installed on the machines. Upon the update of the software, the malicious agent was installed.

In 2019, after the French Ministry of Defense announced that international law applies to cyberspace, the National Gendarmerie announced the cyber operation against the private company Avast to combat the malicious Retadup virus. This virus infected servers on French territory in command-and-control systems. Military doctrine on the subject (Tallinn Manual 2.0) considers that law enforcement operations led by one State that attack command and control servers located in another State (without the consent of this other State) constitute a violation of the State’s sovereignty considered to be the target. The cyber operation could only be carried out within the territory of the State. Research observatories point to abusive practices by twenty-three (23) states.

Thus, there are two perceptions about the nature of cyber operations. According to author Jack Kenny, there are two possible explanations for this.[4] On the one hand, “purists” argue that persistent cyber-engagement operations with the invasion of other states’ networks to maintain a presence within these networks and, thus, obtain intelligence, could constitute a permanent violation of state sovereignty.

There are cyber policies in this sense of permanent engagement in cyberspace: U.S (“defend forward”), U.K (“active defense”), Canada (“active cyber”), New Zealand (“internationally active” engagement.” Russia, China, Iran, North Korea, and others also have active cyber capabilities. In his conclusions, Jack Kenny says: “states that choose not to recognize that a rule of sovereignty applies to cyber operations, such as the U.K., maintain operational flexibility but leave their infrastructure open to attacks that would not be prohibited by a rule of international law below a prohibited intervention. It is clear that for states to develop an understanding of how the rights inherent in sovereignty apply to cyber operations, they must balance the interests of operational freedom with the protection of critical national infrastructure on a state’s territory to identify a ‘half-way house” de minimis threshold at which a violation of sovereignty takes place. Over time, in the absence of a treaty, statements by states by stats on how they interpret the rights inherent in sovereignty to apply with specificity to cyber operations may contribute to the formation of specific customary international law that may focus or clarify the application of such rules”.

In short, the United Nations perceives the problem of conflict between states and/or non-state actors and sovereignty concerning operations conducted in the cyber environment. The concern is with critical national infrastructures that could be classified as military targets. One way to solve this problem is to strengthen the rules, principles, and customs of international law to contain States’ offensive capability in cyberspace and to ensure the self-defense of states in the face of cyberattacks.

Finally, the issue of the impact of information technologies and telecommunications on sovereignty is of interest to Brazil. Further studies, research, and measures are needed to improve the Brazilian State, companies, and individuals’ cyber governance. Currently, cyber defense is a sine qua non condition for the political-electoral sovereignty of the country.

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[1] United Nations, General Assembly.  “Second ‘pre-draft’ of the report of the OEWG on developments in the field of information and telecommunications in the context of international security.

[2] United Nations, General Assembly. “Open-ended working group on developments in the field of information and telecommunications in the context of international security, 8-12 March 2021.

[3] United National, General Assembly. Open-ended working group on developments in the field of information and telecommunications in the context of international security. Final substantive report, 10 March 2021.

[4] Kenny, Jack. France, cyber operations and sovereignty: the “purist” approach to sovereignty and contradictory state practice. March 12, 2021.


Geopolitics and the Semiconductor (Chip) Industry

Ericson Scorsim. Lawyer and Consultant in Regulatory Communications Law. Ph.D. in Law from the University of São Paulo (USP). Author of the book “Jogo geopolítico das comunicações 5G – Estados Unidos, China e impacto sobre o Brasil” (The Geopolitical Game of 5G Communications – United States, China, and Impact on Brazil), published on Amazon.

In the 21st century, the semiconductor (microelectronics) industry is one of the global economy’s leaders. Microprocessors are present in all electronic devices: computers, smartphones, televisions, cars, routers, and others. The United States, Europe, and Asia dominate the global semiconductor supply chain. The leading global technology suppliers and main consumer markets are in these regions.

The matter of semiconductors is now part of world geopolitics. In 2020, the US government imposed several sanctions on the company Huawei, including banning it from providing 5G network technology to the United States. The US government has also imposed restrictions on the supply of semiconductors to the Chinese company. Paradoxically, although the United States dominates the semiconductor industry, it has no global leader in 5G technology. That is why the United States is lagging behind in the 5G technology international competition.

Recently, the German Ministry for Economic Affairs and Energy announced a plan to invest in research and development in the microelectronics industry to prepare for 5G and 6G technologies. Together with other European countries, including Italy, Belgium, and Finland, Germany signed a declaration on “A European Initiative on processors and semiconductor Technologies,” highlighting that the semiconductor sector is a global industry.  Therefore, it is crucial to invest in all the stages of the production chain: manufacturing of semiconductor equipment, design, production, testing, packaging, among others. The declaration also highlights that investments in research and development in the semiconductor industry are among the highest, representing 15% (fifteen percent) to 20% (twenty percent).

Europe is focused on advancing the semiconductor industry in the aspects of equipment power (batteries), radiofrequency technologies, embedded smart sensors for artificial intelligence, microcontrollers, and more. Thus, the goal is to mobilize the industry’s financiers by building an industrial alliance to establish strategic maps for research and investment in semiconductor ecosystems.  

In summary, the purpose of the industrial alliance is to prepare the European industry for the next generation of low-power processors to be used in 5G and 6G networks. In Europe, the issue of technological and digital sovereignty is on the agenda. Mastering the semiconductor industry and the communications network infrastructure, and the cloud computing industry are understood to be vital to European interests. That is why there are investment programs in European data centers through the Gaia-X program.

The Europeans are researching 5GHz technology. Norway, through its university, is the country at the forefront of this scientific research. Here in Brazil, the federal government approved Decree n.  10.615 on January 29, 2021, which deals with tax incentives for investments in the semiconductor industry. There are tax incentives (PIS, IPI) for importing software. There is a provision for tax benefits for investments in research, development, and innovation to support the advancement of the semiconductor industry, which includes: the conception, development, and design; diffusion or physical-chemical processing and wafer cutting, encapsulation, and thesis, substrate cutting, encapsulation and testing in integrated circuits, information displays, among others.

The Decree also defines research, development, and innovation activities.  We note that Brazil lacks a geostrategic vision of the global semiconductor industry, focusing only on importing components. The previous administration created the Brazilian Semiconductor Company, a state-owned company dedicated to the manufacturing of semiconductors. 

The current administration decided to extinguish this company. Semiconductors are considered a dual-use technology, that is, with both civil and military use. And that is why developed countries consider the semiconductor industry in their geostrategy. Interestingly, the United States, in the National Defense Authorization Act,provides for federal investments in the manufacturing of the semiconductor industry on US territory. Several US states are vying to attract international investment in domestic semiconductor production. 5GHz (five gigahertz) and 6GHz (six gigahertz) technologies will shape the future of countries’ digital economies. A lack of semiconductors can collapse a whole industry.

Dependence on semiconductors produced in other countries is a systemic risk to the country, including its critical national infrastructure. If Brazil does not have a global geostrategic vision on the semiconductor industry, it will miss historical opportunities that could represent a “quantum leap” in developing advanced technologies and the preparation of its digital economy.

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Examining Anatel’s Decision to Release the 6 GHz Frequency Band

Ericson Scorsim. Lawyer and Consultant in Regulatory Communications Law. Ph.D. in Law from the University of São Paulo (USP). Author of the book “Jogo geopolítico entre Estados Unidos e China no 5G: impacto no Brasil.” (The Geopolitical Game between the United States and China regarding 5G: Impact on Brazil.) Author of the Communications Law Ebook Collection, published on Amazon.

Brazil’s National Telecommunications Agency (“Anatel”) has decided to allow the 6GHZ frequency band (5,925 to 7,125 MHz) to be used for wi-fi and wi-6E services.

The decision defined the technical requirements for the conformity assessment of restricted radiation radiocommunication equipment. 

Anatel’s decision is in line with the Federal Communications Commission of the United States’ position in allowing the use of the 6Ghz band without the need to license frequencies.  Anatel acted preemptively to the international regulation to be defined by the International Telecommunications Union (ITU).

According to Anatel’s decision: “there is no expectation at ITU to discuss the use of the 6.425-7.025 GHz band for mobile service in the Americas, but only in Europe.  And, according to Anatel, the release of the 6GHZ frequency band “does not prevent its future use also for the fifth generation of mobile service (5G), as there are initiatives aimed at unlicensed 5G (5G NR-U).

Thus, the limits of low-power indoor equipment were set to avoid interference between other frequency bands. The decision also analyzed the coexistence of very low power devices with intelligent transportation systems (ITS), the technology for autonomous vehicle traffic management. Furthermore, Anatel also verified mechanisms for automatic frequency coordination.  According to Anatel’s decision, in the vote of Councilor Carlos Manuel Baigorri: “… the USA hosts several companies that manufacture equipment and, due to the geographical proximity and because it is a common tourist destination, importing American equipment is usually less expensive and more straightforward. Thus, even if Brazil chooses only to allow unlicensed use of the lower portion of the band, preventing the entry and use of wi-fi 6e equipment would prove quite tricky, especially given the promise of delivering better conditions to consumers, which would inevitably lead to countless cases of interference to a mobile network operating in the higher band.

Wi-fi industry entities praised Anatel’s decision as a case of Brazil leading the world on the issue of regulating the 6GHz frequency band. There is already 6Ghz equipment ready for sale. Manufacturers of this equipment have been waiting for a final decision from Anatel on the issue to arrange their sales in Brazil. In fact, there is tremendous economic potential with the release of 6GHz for wi-fi. This technology improves connectivity in closed spaces (called indoor). This enables data traffic flow from fixed and mobile internet networks to smartphones, laptops, tablets, etc. 

There are market opportunities in wi-fi. Companies specialized in providing wi-fi technology to shopping malls, stores, hospitals, clinics, parking lots, airports, public spaces, soccer stadiums, etc. There are opportunities for software companies focused on the automatic allocation of spectrum frequencies. There are also opportunities for companies that manufacture 6GHz network equipment, as well as devices. There is a lot of potential in the Internet of Things (IoT) segment, that is, in machine-to-machine communications. Therefore, windows of opportunity open up for companies manufacturing sensors in various applications: precision agriculture, biomedical devices, Industry 4.0, and logistics, among others.

Furthermore, the big techs have a particular interest in this theme. Facebook has virtual reality and augmented reality projects connecting virtual glasses and smartphones. Apple has smartwatch designs with health applications. Amazon has programs to robotize its logistics centers. With 6GHz technologies, medical examinations with data-intensive images will be transmitted more quickly from one point to another. 

In summary, with this decision on the 6Ghz frequency band, Anatel contributes to the innovation environment and the legal security required for investments in new business models that use the radio spectrum and related to connectivity in various economic sectors. 6G technology is a big bet for virtual and augmented reality, holography, and robotics services. Therefore, it is directly associated with the development of artificial intelligence, big data, and cloud computing systems. Vast amounts of data from equipment and sensors are collected, processed, stored, and transferred. That is why there are concerns about how much risk there is to the cybersecurity of 6 GHz networks, especially when it comes to protecting users’ personal and non-personal data.  Thus, encryption protocols must be strengthened to protect users’ privacy. This is possibly going to be the next point of attention on the 6Ghz topic.

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ANATEL Will Define the Frequency Reallocation for Defense, Public Security, and Army Radiocommunication Services

Ericson Scorsim. Lawyer and Consultant in Regulatory Communications Law. Ph.D. in Law from the University of São Paulo (USP). Author of the Communications Law Ebook Collection, published on Amazon.

Anatel is reviewing the frequency allocation, occupation, and distribution plan. The 5G public notice is demanding an update of the frequency plan. So there are changes that can have an intersectoral impact. Radiocommunication services are essential to the civil defense, national/military defense, and public security sectors (military police and federal police).

These services usually demand the use of the radio frequency spectrum, which is under Anatel’s jurisdiction. Defense and public security bodies have manifested themselves before Anatel regarding reducing the 4910-4990 MHz and 800 MHz frequency band.  There are geolocation applications by base stations (trunked radio system) and situational awareness of battle theaters, with command-and-control functions operated by the Brazilian Army.

According to these public agencies’ manifestation, revoking Anatel Resolution N. 625 of 2012 and Resolution N.  633/2014 will decrease the frequency bands for civil defense, national defense, and public security. On the other hand, we note that there is potential for public-private partnerships in the radiocommunication segment, as this is the subject of Decree n. 10.101/2019. Evidently, the more frequency channels and the larger the bandwidth of the frequency band, the better it is for the industry that depends on radiocommunications.

Also, the greater the “distance” of one frequency band to another, the safer it is against harmful interference to radiocommunication services.

In sum, there are opportunities for companies in the radiocommunication technology segment in the civil defense, national/military defense, and public security sectors, given the demand to update the radiocommunication technology of the Army, military police, and federal police. 

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Decree Enacted to Waive Bidding for Procurement of Specialized Equipment and Services in National Defense Areas

Ericson Scorsim. Lawyer and Consultant in Regulatory Communications Law. Ph.D. in Law from the University of São Paulo (USP). Author of the Communications Law Collection.

 On February 18, 2021, Decree N. 10,631 was published, detailing the legal hypotheses for procuring specialized equipment and services in defense areas with the waiver of bidding.

According to the decree text, the exemption of bidding is justified in the procurement of works and services if, “upon the disclosure of its location, need, characteristics of its scope, specification or quantity may place national security objectives at risk.” Thus, the government is authorized to waive the public tender process when procuring specialized services in intelligence, information security, cybersecurity, communications security, and cyber defense. Hardware and software purchases also fit under this provision.

An example would be the surveillance, monitoring, and tracking software, and software for intercepting communications and inspecting network data traffic. Another example is procuring companies that specialize in social network data tracking services and in the geolocation of people, objects, and vehicles.  The procurement of satellite services for the purpose of spatial geo-intelligence may, in principle, also fit under such provision. Also, intelligence services can be used to collect signals from land, maritime, aerospace, and cyber intelligence.

The decree authorizes procuring consulting services related to any of the matters mentioned above in the services aspect. It also waives the bidding process for “launching space vehicles and the respective procurement of goods and services of the Union for its operationalization.” This legal hypothesis is directly related to the Alcântara aerospace base’s operations, located in the Brazilian state of Maranhão. Nevertheless, no matter how many national security reasons are invoked, minimum transparency is required in such procurement processes.

The publicity principle binds public administration, and it cannot be set aside, even in this case. There are procurement opportunities in the government sector for companies providing intelligence, information security, cybersecurity, communications security, and cyber defense technologies and services. 

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Controversial Issues in the Bid Notice for 5G Satellite Television Services

Ericson Scorsim. Lawyer and Consultant in Regulatory Communications Law. Ph.D. in Law from the University of São Paulo (USP).

Anatel, the Brazilian Telecommunications Agency, is proposing the vacancy of band C (3.5 GHz frequency range) by satellite services in the discussion on the auction of 5G frequencies. Thus, the Auction Bid Notice draft proposes the vacancy of the frequency band from 3.625 MHz to 3.700 MHz. It also proposes to mitigate harmful interference problems in the signal reception of satellite service stations (FSS) operating in the 700 MHz to 4,200 MHz bands.

This frequency band is used for satellite television services, called TVRO for the KU band. Anatel has issued a memo recommending compensation related to the stations linked to foreign satellites. According to that document, the compensation’s objective is to enable the early cleaning of the frequency band, assuming the costs of readjustment of the ground stations operating in band C.

The entity that manages the 3.5 MHz band is the one that will promote the study of technical solutions to mitigate the problem of interference in the 3.6 to 3.7 MHz band. The controversy relates to the amount of compensation to be paid to the satellite operators. The calculation must check the number of stations receiving the satellite signals.

There is no national registry with this information. In sum, Anatel needed to expand the frequency range to ensure the provision of personal mobile services (5G), so it decided to use the frequency range of 3.625 MHz to 3.700 MHz. Theoretically, Anatel can order the allocation of frequencies based on public interest. However, any relocation costs must be fully reimbursed tothe companies affected by the frequency band change.

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Anatel’s New Frequency Allocation and Destination Plan: Controversies Surrounding Maritime and Aeronautical Satellite Services

Ericson Scorsim. Lawyer and Consultant in Regulatory Communications Law. Ph.D. in Law from the University of São Paulo (USP).

Anatel is debating a new Frequency Allocation and Destination Plan, based on the decisions of the 2019 World Radiocommunication Conference held by the International Telecommunications Union.

There is a dispute over frequency occupation between satellite operators and other telecommunications service providers, the so-called limited private services. As an illustration, the company INMARSAT is questioning the change in the L-band frequency range (frequency blocks of 1492-1560 — MHz) for mobile satellite services (MSS).  The aeronautical and maritime sectors use these mobile satellite services.  These are essential services for civil aviation security and maritime transport services. Thus, INMARSAT has questioned Anatel’s lack of criteria regarding frequency allocation in its manifestation in the public consultation on the frequency allocation plan.

According to the company, the International Maritime Organization (IMO) and the International Civil Aviation Organization (ICAO) need mobile satellite services. According to Anatel’s act, the part of the frequency band called L may suffer restrictions for purposes of collective interest land services. Thus, INMARSAT has requested for Anatel to clarify the restrictions applicable to the private limited satellite service. It also noted that mobile satellite services have applications on land, as there are users such as oil and gas platforms, shipping companies, and Internet of Things companies that depend on such services. Therefore, the company requests that Anatel’s technical provisions relating to limited private services do not harm mobile satellite service systems.

Theoretically, Anatel can reallocate the frequency range based on public interest. There is no absolute right of permanence in the same frequency range. However, Anatel must guide its decision according to international standards defined by the International Telecommunications Union, which has the prerogative of harmonizing the allocation of frequencies on a global scale.

In any case, any costs in the reallocation of frequencies resulting from changes by the regulatory agency must be fully reimbursed to the companies eventually harmed by the new spectrum allocation public policy.

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Santos Port Authority Issues a Call Notice for Studies on the Internet of Things

Ericson Scorsim. Lawyer and Consultant in Communication Law, with a focus on Technologies, Media, and Telecommunications.  Ph.D. in Law from the University of São Paulo (USP).

The Santos Port Authority has published a public call for donations of studies on the Internet of things.

The objective is to incorporate IoT technologies in the Port’s activities. The goal is to insert IoT in logistics processes, such as container control, monitoring, and control of time and access to equipment, and real-time data analysis using artificial intelligence. The idea is to install a public or shared IoT network between the Port management and the port terminal logistics operators.

The objectives are to seek efficiency, security, speed, precision, connectivity, and cost reduction, favoring business intelligence.  According to the public notice’s term of reference, the logistics operators are interested in adopting IoT sensors to monitor and control air humidity, elevators, temperature, proximity, speed, presence and monitoring of vacancies, environmental and gas leakage, fire, and rain detectors, equipment control, identification systems, movement detectors, and energy meters.  The Port Authority intends to develop partnerships with the private sector to promote innovation.

Thus, the public notice intends to obtain a study for the deployment of a LoRa (long-range) wireless network to allow for the use of IoT in the Port of Santos.  It is understood that this radio frequency technology can become efficient, precise, and safe for port activities. According to the notice, the study should cover: “market studies focusing on the demand for these services by Port users and related businesses in the regions covered by the LoRa network; engineering and related studies to determine the need for areas and infrastructure that need to be provided by the Port Authority for the installation of the LoRa network; identification of potential parties interested in installing a LoRa network in the region of the Organized Port Polygon; studies to determine the most appropriate legal framework to allow the operation of IoT services by third parties within the area of the Organized Port Polygon.

Furthermore, the study may also provide technical and regulatory alternatives to improve the efficiency in using IoT technology in the Port, focusing on economic and legal security in the partnership with the Public Administration. The public call is open to Brazilian and foreign individuals and businesses, individually or working in a consortium. The studies must be donated to the Santos Port Authority through the assignment of intellectual property rights.

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The National Security Agency has New Rules on Collecting Intelligence Signals from Communications in other Countries: Geopolitical Risks for Brazil

Ericson Scorsim. Lawyer and Consultant in Communication Law, with a focus on Technologies, Media, and Telecommunications. Ph.D. in Law from the University of São Paulo (USP). Author of the book “Jogo geopolítico das comunicações 5G – Estados Unidos, China e impacto sobre o Brasil” (The Geopolitical Game of 5G Communications – United States, China, and Impact on Brazil), published on Amazon.

The U.S. Department of Justice has approved new standards for the National Security Agency regarding the collection of intelligence signals (SIGINT), called DoD Manual S-5240.01-A. Intelligence signals are any kind of information of interest to the national security of the United States, such as phone calls, e-mails, data, videos, audios, content on social networks, telegrams, radio frequency communications, credit card data, financial data, radar information, among other information.

The act is based on Executive Order n. 12.333, passed by the Reagan administration. The National Security Agency of the United States is subordinated to the Department of Defense, which contributes to military operations in addition to the intelligence services. Basically, intelligence signal collection refers to obtaining information, data, and communications abroad and from foreigners. Thus, the National Security Agency can target foreign governments, agents, and companies.

The collection of intelligence signals can occur through the interception of radio communication channels, e-mails, satellites, submarine cables, among other techniques. U.S. citizens can only be the target of intelligence signal collection measures exceptionally. The fact is that the NSA has the ability to intercept communications anywhere in the world. The agency can also hack into computer networks anywhere in the world. Moreover, this government agency has the power to intercept cellular phone networks as well as wireless communications. Thus, any cell phone, anywhere on the globe, can be targeted by the NSA, in principle.

The collection of foreign communications serves to access the intelligence and counterintelligence services of other countries. This allows NSA to retain the metadata of communications such as telephone numbers, identification of the source and recipient of calls, e-mail addresses, identification of senders and recipients of messages.

The government act authorizes foreigners’ electronic surveillance, even if they are located outside the United States. The techniques for collecting intelligence signals based on computer monitoring are secret. A detailed study by David Kris called “The NSA’s New SIGINT” was published on the Lawfare website on January 13, 2021. We also recommend reading another historical study of the relations between NSA and telecommunication companies and technology providers: Susan Landau: Under the radar: NSA’s efforts to secure private-sector telecommunications infrastructure, published in the Journal of National Security Law & Policy, vol. 7, pages 411-442. The author presents the historical debates regarding cryptography.

As you can see, the U.S. government’s act intends to have extraterritorial effects, extending its jurisdiction to reach other countries. In 2013, Brazil had its communications intercepted by the National Security Agency. Among the targets were the Presidency of the Republic, Ministries, Embassies, and Petrobras. Ultimately, it is up to Brazil and Brazilian companies to assess this new measure’s geopolitical impact regarding NSA’s actions concerning the protection of its sovereignty. Also, companies with international operations should measure possible geopolitical risks in the face of this new U.S. government regulation. In short, this NSA action may pose a threat to the privacy and confidentiality of communications. Therefore, there must be a debate by national parliaments and appropriate international bodies regarding the limits to the U.S. government on access, collection, interception, retention of personal and non-personal data located in other countries under the pretext of obtaining intelligence signals. 

Thus, international law must evolve to contain government abuses in the interception of communications under the pretext of national security.

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Anatel’s Regulatory Agenda for 2021-2022

Ericson Scorsim. Lawyer and Consultant in Communication Law, with a focus on Technologies, Media, and Telecommunications.  Ph.D. in Law from the University of São Paulo (USP). Author of the Communications Law Ebook Collection.  Author of the book “Jogo geopolítico das comunicações 5G – Estados Unidos, China e impacto sobre o Brasil” (The Geopolitical Game of 5G Communications – United States, China, and Impact on Brazil), published on Amazon.

Anatel has released its regulatory agenda for 2021-2022. Among the topics related to the provision of telecommunications services is the bid notice for radio spectrum telecommunications services over fifth-generation networks and the bid notice for a Brazilian satellite’s exploitation rights.

Another aspect refers to the reassessment of the continuity of the switched fixed telephony service, including reversible assets. Also, there will be reassessment regulations related to public emergency services and telecommunications networks’ security. On the other hand, there is the intention of passing a new regulation of consumer rights in telecommunications services.

As for the matter of regulatory inspections, the Agency is seeking a more “responsive” inspection model. There will also be a review of the regulation on the conclusion and monitoring of consent decrees. Also on the agenda is regulating the sharing of poles between electricity distributors and telecommunications service providers. Another item is a reassessment of the relevant market regulations (PGMC – General Plan of Competition Goals).

We highlight the reassessment of rates and contributions applicable to the telecommunications sector. Another topic is the regulation on the so-called TV White Spaces related to the VHF and UHF band to use the idle band of sound and image broadcasting services. Another regulatory point is updating the Frequency Ranges Assignment, Destination, and Distribution Plan according to the results of the World Radiocommunication Conference (PDFF 2019). In this same sense, there is also the intention to review radio frequency regulations related to fixed switched telephone services, multimedia communication services, and personal mobile services.  Another aspect is the new regulation of the satellite sector. The Agency is also aiming to review the regulation on the use of the radio spectrum (“RUE”). On the other hand, there will be a reassessment of radio signal blocking regulations. There will also be measures to streamline regulations and related to transparency.

In sum, these issues on Anatel’s agenda are essential to the future of telecommunications in Brazil, with impacts on several other economic sectors.

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